Factsheet from
Name of ACCA member organisation here
Tel: 0000 000 0000
Email: something@accamemberorganisation.co.uk
www.accamemberorganisation.co.uk
Twenty words from the organisation explaining its services over this one line of available text which you see here
Rights for working parents and carers
Given the number of changes to parental rights in recent years, employers could be forgiven for not
knowing where they stand when one of their employees is pregnant or becomes responsible for a
child. But with tribunals making large awards against employers who ignore the rules, you simply
cannot afford to stick your head in the sand.
You need to be clear about the rights of the employee of either sex and your responsibilities as an
employer if you are going to minimise disruption to your business and prevent disputes.
Working parents or carers can often take different types of time off. This briefing sets out your
employees’ rights and your duties towards them. It covers:
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Ordinary maternity leave and additional maternity leave.
Paternity leave, additional paternity leave and adoption leave.
Leave for parents.
Time off for dependants, such as carer leave.
How to avoid the legal pitfalls.
1. Maternity rights
Every female employee who is either pregnant or a new mother has a number of rights including:
1.1
The right not to be dismissed because of pregnancy, maternity leave or childbirth.
1.2
The right to return to work.
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1.3
The right to paid time off for ante-natal care and training, including clinic visits and relaxation and parentcraft
classes.
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1.4
You must consider any request to return to work flexibly. If it is not possible, you need to explain why, with
business reasons.
Refusal to offer a part-time option may amount to indirect sex discrimination, as family responsibilities can
make it harder for women to work full time than men. It may also fall foul of flexible working regulations – any
parent with a child under 17 (or a disabled child under 18) has the right to request flexible working and to
have that request seriously considered. This right will be extended to all employees in 2014.
There are few jobs that really cannot be done on a part-time or job-share basis, including senior
management roles.
Refusal to allow a woman to return to work after maternity or parental leave will be automatically unfair.
You can ask to see an appointment card or similar evidence.
The right to all her normal terms and conditions of employment, except wages or salary, throughout ordinary
maternity leave and additional maternity leave (see 3).
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Ensure that employees are kept informed of opportunities for promotion and training or they may have a
complaint of discrimination.
1.5
The right to be offered suitable alternative work, or normal pay for not working, if she has to be suspended
because of health and safety considerations.
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If your health and safety assessment shows risks which might affect a pregnant woman or her baby, and
they cannot be removed, you must take action to ensure your employee is not exposed to them.
You must carry out this risk assessment if you employ any women of childbearing age, whether they are pregnant or
not.
2. Ordinary maternity leave
2.1
Every employee who becomes pregnant is entitled to 26 weeks' ordinary maternity leave.
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2.2
Part-time employees have the same right to maternity leave as full-timers.
The employee must notify you, in writing if requested, that she is pregnant, and give notice of several key dates.
She must:
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2.3
Tell you her expected week of childbirth (the EWC). You can reasonably ask your employee to provide
confirmation of the EWC from her GP or midwife.
Choose when to start her maternity leave, any time from the 11th week before the EWC, and inform you of
the start date by the 15th week before the EWC or at least 28 days before her leave is due to begin.
Depending on the circumstances, leave may even start on the day of the birth.
Tell you when she has had the baby.
Give eight weeks’ notice if she wants to return to work before the end of her maternity leave (16 weeks’
notice if she has adopted employee-owner or employee-shareholder status).
You must write to her within 28 days of being told when she intends to start maternity leave, setting out the date
on which her maternity leave will end.
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If this is the date on which she intends to return to work, she need do nothing more.
2.4
The law lays down time limits affecting a woman’s return to work after childbirth.
2.5
 It is illegal for a woman to return to work within two weeks of giving birth (four weeks for factory workers).
It is automatically discrimination if you dismiss an employee during her maternity leave period, or select her for
redundancy, wholly or mainly because she is pregnant, has taken maternity leave or has given birth (see 8.1).
2.6
If an employee is ill during her pregnancy, she is entitled to take sick leave, just as she would if she was not
pregnant.
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If she is absent from work with a pregnancy-related illness in the four weeks ahead of the EWC, her
maternity leave will start automatically, regardless of when she said she wanted it to start.
If she is too ill to return to work at the end of her maternity leave, you must treat it as a sickness absence.
If the absence persists, you may eventually need to follow your dismissal procedure.
You must only consider absence following her return from maternity leave. To consider any absence during the
pregnancy or sickness during maternity leave could be discriminatory and you could also be sued for unfair dismissal.
2.7
If she meets the qualifying conditions, a woman whose baby dies, or is stillborn, after the 24th week of pregnancy
is still entitled to ordinary maternity leave, additional maternity leave and statutory maternity pay.
2.8
Many pregnant women on ordinary maternity leave are entitled to statutory maternity pay (SMP), consisting of:
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90% of average weekly earnings (AWE) for the first six weeks.
£136.78 per week or 90% of AWE (if lower) for the next 33 weeks.
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3. Additional maternity leave
Every pregnant employee is entitled to 26 weeks’ additional maternity leave.
3.1
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3.2
However, the employee remains entitled to accrue the statutory entitlement of 5.6 weeks’ paid annual leave
(28 days for someone working five days a week).
After her additional maternity leave, the employee is entitled to come back to the same kind of job, or to a
suitable alternative where this is not possible.
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3.3
Additional maternity leave starts at the end of ordinary maternity leave and runs out 26 weeks later.
Women on additional maternity leave continue to benefit from all their contractual rights (except
remuneration).
Contractual matters may be negotiated and agreed between you and the employee.
A suitable alternative must give her equivalent pay and conditions, be suitable for her and be appropriate in
the circumstances.
If the employee is unfit to return, she will be regarded as off sick and may receive sick pay if she qualifies.
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If the sickness absence continues and you eventually wish to dismiss the employee, you must implement
your full dismissal procedure right from the very beginning.
You must ignore the additional maternity leave and only take account of subsequent absences, or the dismissal
will probably be seen as unfair and as sex discrimination.
4. Paternity leave
4.1
Fathers (or those with responsibility for bringing up children) are entitled to take paid time off at or around the
time of the child’s birth.
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4.2
Employees must fulfil certain criteria.
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4.3
They can take either one full week, or two continuous full weeks, known as ordinary paternity leave.
This leave must be taken within 56 days of the birth (or the EWC if the birth is early).
They are entitled to statutory paternity pay of £136.78 a week or 90% of average pay if lower. The employer
can set this off against NI contributions.
They must have worked for you continuously for 26 weeks by the end of the 15th week before the EWC.
They must have (or expect to have) responsibility for bringing up the child.
They must give you adequate notice (at least 28 days).
Fathers with at least 26 weeks’ continuous service also have the right to up to 26 weeks additional paternity
leave.
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Additional paternity leave can be taken between 20 weeks after the birth and the child’s first birthday.
The mother must have returned to work and the father must be taking the time off to care for the child.
If the mother returns to work while still entitled to at least two weeks’ SMP, the father is entitled to additional
statutory paternity pay. The rate is 90% of average pay, up to a maximum of £136.78 a week.
Additional adoption leave follows the same principles.
5. Adoption leave
5.1
An employee who adopts a child from a UK adoption agency is entitled to time off to settle the child in its new
home.
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5.2
There are conditions to this entitlement.
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5.3
They can take up to 26 weeks of ordinary adoption leave if they have worked for you continuously for at least
26 weeks by the time they are matched with a child.
They can also take up to 26 weeks of additional adoption leave.
They are entitled to statutory adoption pay of £136.78 per week or 90% of average pay if lower for up to 39
weeks of adoption leave.
Where the child has been adopted by a couple, the other partner may be entitled to paternity leave (see
4.1―4.3) and additional adoption or paternity leave.
There must be an agreement to adopt. You are entitled to ask for evidence of it.
The employee must have been newly matched with the child by an adoption agency. Adopting within the
family, or an existing foster child, does not count.
The employee must give reasonable notice.
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This must be at least 28 days before the date the agency expects to place the child.
The start date can be changed but the employee must give you 28 days’ notice.
6. Parental leave
Both mothers and fathers are entitled to time off to look after their children.
6.1
They are entitled to 18 weeks’ unpaid parental leave per child from 8 March 2013 (previously 13 weeks).
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This entitlement must normally be taken before the child’s fifth birthday or before the child’s 18th birthday in
the case of a disabled child.
Parents of adopted children may take it at any time up to five years after the placement (or until the child’s
18th birthday, if sooner).
Leave must be taken in agreement with you, the employer. If it is impossible to reach agreement, there is a
fallback position under which not more than four weeks’ leave may be taken per child per year, unless you
agree to vary this.
Unless immediately following birth or adoption, you can ask that the leave be postponed for up to six months
if it would seriously disrupt the business.
If the employee disagrees, he or she has the right to go to a tribunal.
6.2
Only parents who have one year’s continuous service with you qualify.
6.3
Parents must give you reasonable notice that they intend to take parental leave.
Under normal circumstances, this means at least 21 days.
7. Time off for dependants
In an emergency, employees are entitled to ask for ‘reasonable’ time off to care for dependants. You do not have to
pay for this time unless your employment contracts state otherwise.
7.1
This is for short-term problem solving rather than continuing care.
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The problem must be unforeseen. For example, sudden illness, or a breakdown of childcare arrangements.
Where problems are foreseen, other arrangements should be made.
The time must be ‘reasonable’ — one or two days, rather than one or two weeks.
In determining what is reasonable, each case must be decided on its own merits.
7.2
The problem must involve dependants.
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This normally means employees’ children, parents or other close family members.
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7.3
But it might also mean a frail neighbour who is looked after by your employee.
If you think an employee is abusing the system, you can refuse time off.
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You can, if necessary, investigate or institute disciplinary proceedings. But bear in mind that the employee
could then have the right to take you to a tribunal.
8. Employment and dismissal
8.1
Dismissing somebody pregnant is automatically unfair, and almost certainly discriminatory if the dismissal is due
to pregnancy, or any reason connected with pregnancy.
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8.2
The employee has the right to be given written reasons, without having to ask, if she is dismissed at any time
during pregnancy or statutory maternity leave.
If a tribunal finds you have dismissed your employee unfairly, the basic award can be up to £13,500. But a
tribunal also has the powers to award compensation for financial loss up to a maximum of £74,200.
If a tribunal finds your action amounted to sex discrimination, it can make an unlimited compensation award,
including an award for injury to feelings.
If you are making someone redundant during pregnancy or maternity leave, you must be able to show that your
selection criteria are absolutely objective and fair and in no way affected by the pregnancy or maternity leave.
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This is so hard to prove that you should avoid making anyone in this situation redundant, unless the reason
is very clear.
A woman on maternity leave has the right to be offered a suitable job on her return, or the right to a redundancy
payment.
8.3
Deciding not to employ or promote a woman because she is pregnant — or because she may become
pregnant — is sex discrimination.
9. Getting help
9.1 The best up-to-date information is often available from Acas (08457 47 47 47 or at www.acas.org.uk).
9.2 For information on statutory pay and other aspects of National Insurance and PAYE, contact the HM Revenue &
Customs employer helpline on0300 200 3200.
9.3
For guidance on employment rights, visit www.gov.uk/browse/employing-people.
Note
Employees adopting ‘employee-owner’ or ‘employee-shareholder’ status give up some of their employment rights in
return for shares in the business. They must give 16 weeks’ notice (instead of the normal eight) if they want to return
early from maternity or adoption leave. They do not have the statutory right to request flexible working or protection
against dismissal for making a request for flexible working, except in relation to requests to work flexibly on return from
parental leave. Nor will they benefit from ordinary unfair dismissal protection after two years’ continuous employment.
Note
Employment law is complex and is changing rapidly. This briefing reflects our understanding of the basic legal position
as known at the last update. Obtain legal advice on your own specific circumstances and check whether any relevant
rules have changed.
Experts’ quotes
“Following the introduction of the Civil Partnership Act, civil partners are now classed as 'dependants' under emergency
leave arrangements.”
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Jim Givens,
HR Management Solutions
“The streamlining and simplification of maternity rights has been long overdue and the new provisions welcomed. The
challenge for employers will be managing up to 52 weeks’ maternity leave alongside the other family rights which have
been introduced, including the right to flexible working.”
Audrey Williams,
Eversheds
“Remember that paternity leave can apply to one member of a couple who adopt a child as well as natural fathers.”
Audrey Williams,
Eversheds
Last reviewed 01.10.13
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